from the redact-this dept

Paul Levy has been staying on top of a rather important aspect of the ongoing Rosetta Stone/Google lawsuit over whether or not Google is liable for trademark infringement over keywords ads that might point to counterfeit copies of Rosetta Stone software. So far, Rosetta Stone has lost badly and it seems likely that will continue. However, what caught Levy's attention is that in the appeal, both sides worked out an agreement to file certain aspects of their briefs "under seal" thus hiding from the public large segments of the facts related to this case that will surely set an important precedent one way or the other. That's hugely problematic and Levy complained about it. Both companies agreed to unseal their briefs, though Google has not yet done so, and Rosetta Stone only did so at the last minute, leaving little to no time for potential amici to make use of the unredacted filings in making their own arguments. However, once Rosetta Stone's brief was released unredacted, it was quickly realized that the redacted sections had no reasons for the redactions in the first place, as they did not contain confidential information at all.

And now it's looking even more ridiculous, because while the briefs have been (or will be) released in unredacted form, the 15 volumes of Joint Appendix is still mostly (13 of the 15 volumes) being filed under seal. Lawyers Eric Goldman, Marty Schwimmer and Levy have filed motions to intervene and to have the entire Joint Appendix unsealed. In explaining why, Levy notes:

For more than three decades, the courts have recognized a general policy under both the common law and the First Amendment under which judicial records -- both briefs that argue how judges should resolve vases, and the evidence submitted in support of those arguments -- should be open to the public unless there are very good reasons why particular pieces of evidence should be kept secret. That is the best way for consumers to understand how their courts are operating and why judges reach their decisions, as well as to monitor the activities of the parties to litigation. But Rosetta Stone and Google have flagrantly disregarded these rules in the course of litigating their trademark dispute in federal court in Virginia, and more recently in the Fourth Circuit....

The pressures of commercial litigation have created an increasing tendency for private litigants and judges alike to ignore the requirements for public scrutiny by entering joint agreements in which each side gets to keep its own information secret. To save time and expedite discovery, particularly in "rocket-docket" jurisdictions that put a high premium on expedited resolution of cases, parties agree that each side can designate documents as "confidential" subject to the later right to challenge the need for confidentiality. The agreements typically further provide that, when discovery materials are used in support of dispositive motions, anything designated as confidential must then be filed under seal.

As he notes, in theory each side can challenge this, but they rarely do, since they tend to both agree to keep each other's info secret -- and it's the public that loses out. Hopefully the court pays heed to this and pushes Google and Rosetta Stone to unseal the full filings in the case.

Facts...

Hiding facts is neither new nor news worthy. If it were possible neither side would reveal a scrap of fact or evidence in a case till trial time. This used to be the protocol which resulted in the "Perry Mason Moment" where one side would deliver the crushing/jury swinging fact! Very dramatic but hardly what the law is about.